Contractual Reconstructions

In the twilight of utilitarianism contract theorist sought to respond to the problems that utilitarianism had thrown up. How successful were they? Our review of contract theory has shown that it is not possible to base a contract theory on a utility theory of rationality, even though some have claimed that such a theory states the essential elements of rational behaviour. The axioms of utility theory are controversial in themselves, and do not give an account of prudence. To have an account of prudence, we need to turn to the deliberative account of rationality, and the idea of intelligibility. The practical syllogism will only take us so far, however, and will not deal with cases where interests conflict. There is no need to make a sharp distinction between contract theories in which there is a plurality of agents, without a veil of ignorance, and a single agent behind a veil of ignorance. The singular veil of ignorance construction can be regarded as a more abstract thought experiment in situation of moral perplexity. Similarly, the distinction between mutual advantage theories, which involve essential reference to a baseline of non-cooperation, and baseline independent theories is not clear, since much depends on the character of the baseline. The problem of obligation remains unresolved, but its lack of resolution underlines a conclusion of Hart to the effect that coercion is an essential element of a large-scale society.

Justification to Others

Prichard posed the question of whether there was a reason for persons to take on the obligations of morality. Scanlon offers a distinctive contractualist answer to this question, which is based on the notion of what it is reasonable for persons to act on as moral duties. It is useful to contrast Scanlon’s theory will John Stuart Mill’s conception of sanctions. For Scanlon, by contrast with Mill, there is no need to appeal to a special psychological element to explain how a person could be moved to moral action. The motivation is adequately captured in the idea of external reasons, which derive from the social relations in which persons stand to one another. This is not intended as a reply to the egoist, but as an account of what moves people to act morally. Scanlon has to assume a thesis of ‘purity of heart’ akin to that of Rawls, and this is implausible. A useful way of understanding Scanlon’s approach is via the idea of relative necessity, where the necessity is relative to the code of a particular society. However, understood in this way, Scanlon’s thesis is vulnerable to the fact that some societies have deep divisions, in which there is no coherent and agreed moral code. Yet, there can still be justice between strangers.

Decent Reasoning

For much of his professional career, Barry was not a contract theorist, and he relies on a number of elements from Scanlon’s construction. His general approach is built on a distinction he sees in theories of justice between those that rely on the idea that justice is agreement to mutual advantage and those that rely on the idea that justice is a matter of impartiality. His own theory is impartialist, but dispenses with the device of the veil of ignorance. Instead the contracting parties are assumed to reason with one another about the constitutional terms of their association, and all are allowed to veto proposals if those proposals and unreasonable. Unreasonable proposals are those that fail the test of avoiding absolute deprivation, relative deprivation, or failing to make provision for public goods. His anticipated theory of economic justice never materialized, and his derivation of a Rawlsian difference principle is only partially successful. However, it is possible to use the practical syllogism in a Barry set-up to derive a case for social insurance. More importantly, his principle contribution to social contract theory is his sketch of the empirical method, a method on which the future of social contract theory can be built.

Rational Choosers

From some points of view, Harsanyi stands apart from other theorists discussed in this book. He was a utilitarian, and he focuses on the hypothetical choices of a single individual. Nevertheless, his construction has been influential, and he has good claim to be the founder of the device of the veil of ignorance. He uses the orthodox utility theory of rationality to show that behind a veil of ignorance in which a hypothetical individual had an equal chance of being anyone in society, rationality would lead to that person adopting the principle of maximizing average utility. Utilitarianism can be represented as the maximizing choice of a rational individual behind the veil of ignorance. A central element in Harsanyi’s construction is the idea of ethical individualism, which he holds is captured in an axiom of independence defining the rationality of choice. He also revives the idea of the interpersonal comparability of utility. His reliance on interpersonal comparisons is a potential point of criticism, as is the argument that, strictly speaking, he has not shown that utilitarianism is required, as distinct from merely being consistent with, his principles of rational choice. A more fundamental criticism is that the phenomenon of preference reversals, well established in empirical literature, call into question the independence axiom. Preference reversals are intelligible. In relation to some cases, they suggest too an important distinction between rational choice and prudent choice.

Contractual Constructions

Social contract theory can be understood as a form of constructivism. Constructivism is the view that the content of morality can be defined by a procedure, the results of which define principles of actions. Constructivism can be understood as directed both to the normative question of what principles are justifiable and to the meta-ethical question as to the logical status of such principles. In respect of the latter, constructivism holds to a procedure-dependent conception of practical reason rather than a truth-directed view. In the case of social contract theory, the procedure is made up of three elements: an original position; the reasoning of the contracting parties; and the contents of the agreement that those contracting parties conclude with one another. Some contract theorists can be thought of as aspiring to a form of ethical reductionism, involving the defining of moral notions in non-moral terms by means of the constructed procedure, but this is not true of all. In this connection, there is a dispute as to whether rationality is to be defined in terms of self-interest. Constructivism is offered as an alternative to intuitionism, in which it is assumed that principles are in some sense self-evident.

The Twilight of Utilitarianism

Social contract theory arose as a response to the twilight of utilitarianism. For many years utilitarianism had been seen as a political philosophy of human emancipation. Like social contract theory, utilitarianism was a critical and rationalistic morality. However, it was judged incapable of recognizing the separateness of persons, the claim by each person to be treated with justice. Utilitarianism defined the good in terms of pleasure, conceived in a naturalistic way. It regarded pleasure as the guide to choice. It promised to provide an intellectual framework within which everyday intuitive morality could be rendered consistent. And it sought to ground action in practical reasoning about the promotion of the good. However, these distinctive elements came under challenge. With the rise of modern utility theory, pleasure was no longer thought of as the guide to choice. Pleasure was no longer conceived as the sole good. Doubts were raised about the extent to which the principle of utility could explicate the principle of justice. And even utilitarianism had to concede the dualism of practical reason. One response was the rise of intuitionism in the early part of the twentieth century. Another response was the rise of social contract theory, as discussed in this book.

Contractual Constitutions

Arendt pointed out that social contract theory identified some elementary truths of democratic politics. What might be those elementary truths? The first is the need for public goods; the second the role of a two-level theory; and the third is the essential role of government in providing the conditions for social cooperation. Democratic contracts need to respect the requirements of political equality. However, this still leaves us with the problem of knowing what could be agreed among agents reciprocally situated. The empirical method suggests that we need to look to social conditions that embody the circumstances of impartiality. One such set of conditions is found in common property resource regimes, where power is roughly equal. Such regime exhibit various forms of equality, but they also suggest the need for participation as well as monitoring and sanctions. Large-scale societies need to incorporate conditions of open representation and effective deliberation if they are to exhibit the circumstances of impartiality. International contracts are best understood if the Grotian norms of traditional international relations are regarded as equivalent to the individualistic minimum of a domestic order, which needs a social contract to deal with externalities and provide international public goods. It is plausible to think that, in an interdependent world, mutual advantage may exhibit the logic of a universalization to humanity as an end in itself.

A Method of Ethics?

Modern social contract theory is a form of constructivism in ethics. Constructivism is both a normative programme and a meta-ethical programme. One objection to contract theory is that it is a ‘spare wheel’, adding nothing to first-order ethical argument. However, this line of argument runs up against the problem that there are certain practices, for example rape in marriage, that are better understood in terms of contractual morality than in terms of intuitive or common sense morality. Contract theory cannot be fully reductionist in a meta-ethical sense, because the theorist needs some intuitions to define an appropriate construction. One important role for contract theory is to evidence the social conditions for relations of justice among persons. Moreover, contract theory can sometimes be presented as though the theoretical construction is rigged, but this is a distortion of constructivist ambitions. Universalizability remains a challenge, as does the question of the determinateness of the results of contract reasoning.

Fairness, Goodness, Reasonableness

The study of obligation in Rawls raises a number of interpretative questions about the way in which A Theory of Justice relates to Political Liberalism. The interpretation offered here is that the two are concerned with distinct problems. The problem of congruence is the problem that exemplifies the problem of moral duty. In Theory, Rawls’s aim is to show how a rational plan of life supports and affirms a person’s sense of justice. In approaching this problem, Rawls offers two sorts of arguments: the conditional and the non-conditional. The unconditional arguments rely upon balance of motives considerations, but are insufficient to reconcile a sense of a person’s good with the duties of justice. The non-conditional arguments eventually fall back upon a controversial philosophical position. In Political Liberalism the argument is transformed into one of reasonable agreement among those who share a conception of the good. However, in substituting the potential alienation of churches or sects from society at large for the alienation of individuals from moral norms, Rawls has substituted one problem for another.

Constitutional Uncertainties

The Calculus of Consent by Buchanan and Tullock was the first book to apply the contract method to questions of public choice, particularly in respect of voting, in the modern era. Their contractual construction imagines individuals in an original position of a laissez-faire economy, where the individuals have to determine rules for the making of collective choices in respect of the reduction of economic externalities and the provision of public goods. Those individuals calculate the costs and benefits of different decision rules. Faced with proposals with which they disagree, individuals would prefer a high threshold of agreement; faced with proposals with which they agree, individuals would prefer a low threshold of agreement. The constitutional question such individuals confront is to determine a general decision rule when they are uncertain about the future stream of choices the members of their community will face. Buchanan and Tullock are defended against the criticism that their original position lacks justification and that it presupposes a requirement of unanimity to secure change. However, they are less convincing in their attack on the simple majority principle, and in their attempt to show that supermajority decision-making does not give too much power to minorities. Indeed, sometimes the supermajority devices they support should be used to protect minorities, as shown in the literature on consociational democracy.